Delhi District Court
Shri Murari Lal Kathuria vs Shri Ashok Kumar on 19 March, 2013
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
ACJcumARC(WEST) THC, DELHI
E No. 274/2011
Date of institution:3.10.2011
Date of Order: 19.03.2013
Shri Murari Lal Kathuria
Son of Shri Late Uttam Chand
R/o 115, Mukerjee Park,
New Delhi 110018 ....... Petitioner
Versus
Shri Ashok Kumar
Son of Shri Dharam Pal
R/o A58/1, Shyam Nagar,
Punjabi Market,
New Delhi110018 ......Respondent
Order deciding Leave to Defend in Eviction petition U/sec. 14(1)(e) r/w Section 25B of DRC Act, 1958
1. Vide this order I shall dispose of the application U/s 25B (4 & 5) of DRC Act of the respondent for seeking leave to defend filed on 18.11.2011 .
2. The eviction petition U/sec. 14(1)(e) r.w. Section 25B of the Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act) was filed by the petitioner no. 1 against the respondent on 03.10.2011.
3. The submissions made in the petition are as under: A.That the first floor of property bearing No.A58/1, Shyam Nagar, Punjabi Market, New Delhi was rented out by the petitioner to the respondent in the year 1984 at a monthly rent of Rs.300/ per month.
B.That the premises is being used by the respondent for commercial purposes and that after part demolition of the property, the respondent is using the tenanted premises with the help of improvised stairs.
C.That the said tenanted premises is required by the petitioner for his son Pradeep E.No. 274/11 Page no. 1 of 19 Kathuria, who is a qualified Company Secretary and is practising independently and having office at Rajender Place which he has taken on rent at the rate of Rs.9000/ per month.
D.That the landlord of the son of petitioner (Pradeep Kathuria) has asked the son of the petitioner to vacate the premises by December 2011 and as such the petitioner requires the tenanted premises for establishing the office of his son.
4. The respondent filed Leave to Defend along with affidavit and in the affidavit the respondent admitted the following facts:
A.That the respondent is a tenant in the suit property since 1986. (para 2 of affidavit) B.That the petitioner is the landlord of the respondent. (para 3 of affidavit) C.That the rent of the premises is Rs.300/ per month. (para 4 of affidavit)
5. The respondent in his affidavit has raised certain defences and the same are as under:
A.That the tenanted premises is the only accommodation available with the respondent to carry out his business and to earn his livelihood.
B.That the petitioner is not the owner of the tenanted property and that as per the respondent the premises was owned by father of the petitioner and as such other legal heirs of the Late Uttam Singh (father of petitioner) are necessary party to the proceedings.
C.That the site plan filed by the petitioner is not correct. The respondent also filed a site plan showing the tenanted premises.
D.That it is unbelievable that the son of the petitioner, who is a qualified Company Secretary, will prefer to sit or maintain office at the tenanted premises, as the tenanted premises is in a remote area and not very well connected with public transport.
E.That the second floor, above the tenanted premises is vacant and can be used by the son of petitioner and that the ground floor of the same premises is being used by Anil E.No. 274/11 Page no. 2 of 19 Kathuria, elder son of the petitioner.
F.That the petitioner is having a property at Mohan Garden, Delhi (close to Uttam Nagar) which is lying vacant and he is also living in a posh colony at 115, Mukherjee Park, New Delhi which is measuring 200 square yards and that son of petitioner, Pradeep Kathuria is running his office at the ground floor of the said house.
G.That the respondent in the year 1986 had paid a sum of Rs.10,000/ to the petitioner as pagri which was real value of the property at that time and it was agreed between the parties that the respondent would use the property for his life time.
6. The petitioner has filed a reply to the application for Leave to Defend along with counter affidavit and in the counter affidavit he has stated as under (in the sequence in which the defences have been stated above): A.That the respondent is running his business from a premises in Tihar Village and that he is no longer using the tenanted premises for his own use. B.That the petitioner is the owner of the premises as he had purchased the same for consideration through Receipt, GPA, affidavit, will etc. (The copy of the said documents was also filed by the petitioner) C.That the site plan filed by the petitioner is correct and the one filed by the respondent is not correct.
D.That the son of the petitioner requires the tenanted premises for establishing his office as the said premises is very near to the residence of the petitioner as the son of petitioner is residing with him at Mukherjee Park and also for the reason that the his son would save Rs.9,000/ per month which he is paying rent at present for the office in which he is working. That if the son of the petitioner opens his office in the tenanted premises then he would also be able to look after the petitioner who is 67 years old as the petitioner and his other son Anil Kathuria are using the remaining portion of the premises for their commercial establishment.
E.No. 274/11 Page no. 3 of 19 E.That the ground floor of the premises is being used by the petitioner and his son Anil Kathuria as a shop and the second floor of the premises is being used by them for storage purposes. Thus the second floor of the suit property is not vacant and cannot be used by younger son of the petitioner for establishing his office. F.The petitioner denied that he has any property at Mohan Garden, though it was admitted that he has a residential house at Mukherjee Park. G.The petitioner admitted that he had received a sum of Rs.10,000/ from the respondent but he denied that the said amount was received as pugri, rather as per the petitioner the said amount was received as advance/security deposit. The petitioner also pointed out in counter affidavit that the respondent has not filed on record any receipt of said amount.
7. Written Arguments were filled by the respondent, and the same were perused. No arguments were advanced on behalf of the petitioner and his opportunity to address arguments was hence closed.
8. In order to succeed in a petition for eviction filed under section 14(1)(e) of the Delhi rent Control Act the petitioner must establish that:
i.He is the owner and landlord in respect of the tenanted premises.
ii.That he requires the premises bonafide for himself or for any member of his family dependent upon him.
iii.That he has no other reasonably suitable accommodation
9. The scope of the section has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as "Satyawati Sharma v. Union of India" AIR 2008 SUPREME COURT 3148 so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act.
10. The defences taken by respondent are discussed below and the same are as under: E.No. 274/11 Page no. 4 of 19 1 Tenanted premises is the only accommodation available with the respondent to carry out his business and to earn his livelihood: 1.1 The respondent has taken the defence that he is doing commercial activity in the tenanted premises and that it is the only means of livelihood for the tenant. 1.2 Though the petitioner has stated that the respondent is running his business from some premises at Tihar Village but the fact remains whether the said defence is of any relevance to the issue at hand.
1.3 In the opinion of the court the said defence has no relevance to the issue at hand as it is not the livelihood of the tenant which is to be looked into by the court in these proceedings, rather, the court is to look into whether the tenant has disclosed some facts which may disentitle the landlord from obtaining an order for recovery of possession.
1.4 The fact that the tenanted premises is the only source of livelihood of respondent does not render the landlord/petitioner disentitled to eviction of respondent from the tenanted premises. There is no provision in the DRC Act to evaluate the comparative hardships and comparative need between the landlord and tenant for deciding eviction petition. (Harbhajan Dass Vs Tilak Raj Mehta 1980 RCJ 780 Delhi) 1.5 Thus, this defence raised by the respondent does not raise any triable issue. 2 Petitioner is not the owner of the tenanted property 2.1 The respondent has contended that the petitioner is not the owner of the suit property and that as per the respondent the premises was owned by father of the petitioner and as such other legal heirs of the Late Uttam Singh (father of petitioner) are necessary party to the proceedings.
2.2 The petitioner has submitted that he is the owner of the tenanted premises and that the same was purchased by him for consideration.
E.No. 274/11 Page no. 5 of 19 2.3 A perusal of the affidavit of the respondent reveals that in para two and three of the affidavit he has admitted that he is the tenant in the tenanted premises under the landlordship of the petitioner since 1986. Thus the relationship of landlord and tenant is admitted.
2.4 In rent control legislation, the landlord can be said to be owner, if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. 2.5 In M.M.Quasim Vs Manohar Lal Sharma (1981) 3 SCC 36 it was observed by the Apex Court that an "ownerlandlord" wh can seek eviction on the ground of his personal requirement is one who has a right against the whole world to occupy the building in his own right and exclude anyone holding a title lesser than his own. 2.6 It was observed in Shanti Sharma Vs Smt Ved Prabha AIR 1987 SC 2028 that the term "owner" has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. The Act has been enacted for protection of the tenants. But, at the same time, it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds. Ordinarily, the concept of the ownership may be absolute ownership in the land as well as of the structure standing thereon. But in the modern context, where all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Government or the authorities constituted by the State. The legislature, when it used the term "owner" in s. 14(1)(e), did not think of ownership as absolute ownership. The meaning of the term "owner" is visavis the tenant i.e. the owner should be something more than the tenant. In cases where the plot of land is taken on lease, the structure is built by the landlord and he is the owner of the structure.
2.7 In Sushil Kanta Chakravarty Vs Rajeshwar Kumar 2000 (2) RCR Rent 4 it E.No. 274/11 Page no. 6 of 19 was observed that where there was an agreement to sell and so also a power of attorney in favour of the purchaser landlord and he had been given possession by virtue of the said power of attorney, it was held that he could maintain a petition for eviction.
2.8 In the present case the defence raised by the respondent that the petitioner is not the owner of the premises is not tenable even prima facie for the following reasons: 2.8.1 Because the respondent has himself admitted that he was inducted as tenant by the petitioner in the property that too in 1986 and that since then, till the filing of the affidavit by respondent, the petitioner is collecting rent in his own capacity and not for or on behalf of anyone else.
2.8.2 Because the petitioner has filed documents on record (of which the will and receipt are registered documents) which show that the tenanted premises was purchased by the petitioner in 1982 for consideration of Rs.40,000/ from Gian Chand.
2.8.3 Because the fact that the petitioner purchased the property in 1982 is corroborated by the fact that the premises was admittedly rented out in the year 1984 by the petitioner to the respondent and since that day he is collecting rent in his own capacity from the respondent.
2.8.4 Because the respondent has not produced any document to counter the documents produced by the petitioner and he has also not disclosed the name of the actual owner of the property as per his personal knowledge. It may be noted that the respondent has merely stated that he was told by someone that the deceased father of the petitioner was the owner of the property. Respondent has not disclosed as to who told him that father of the petitioner was the owner of the property. Thus, the respondent has raised this defence without any verified knowledge of facts. 2.8.5 Because, even if it is believed that father of the petitioner was the owner of E.No. 274/11 Page no. 7 of 19 the property, still after his death the petitioner becomes coowner with other legal heirs and as a coowner he can file eviction petition without impleading other co owners. Reliance is placed on judgments Kanta Udharam Jagasia Vs C.K.S Rao (1998)1 SCC 403; Surender Kumar Jhamb Vs Om Prakash Shokeen 2000(2) RCR 540; Mohinder Prasad Jain Vs Manohar Lal Jain (2006) 2 SCC 724; India Umbrella Manufacturing Co Vs Bhagadandei Aggarwal (2004) 3 SCC 178; Sri Ram Pasricha Vs Jagannath (1976)4 SCC 184; Dhanna Lal Vs Kalavatibai (2002) 6 SCC 16.
2.8.6 Because, the respondent has stated in para 18 of his affidavit that in 1986 he had paid Rs.10,000/ to the petitioner as pagri which was the real value of the tenanted property at that time and it was agreed between them that the premises would be used by the respondent for his life time. The said submission of the respondent itself shows that qua the respondent the petitioner was the owner of the property, otherwise why would respondent have paid a sum of Rs.10,000/ (sum equivalent to value of property) to a person who is not even an owner of the property. 2.8.7 Thus, this defence raised by the respondent is a sham defence and it does not raise any triable issue.
3 Site plan filed by the petitioner is not correct.
3.1 Both the petitioner and respondent have filed site plans and both of them stated that the site plan of the other is not correct.
3.2 The court has gone through both the site plans and found that both the site plans are similar, except that the site plan filed by the respondent is having more details as it mentions the property of neighbours and it also mentions the dimensions of the tenanted premises. The said site plan also shows the improvised stairs going to the tenanted property.
E.No. 274/11 Page no. 8 of 19 3.3 Thus, the two site plans are same and correctly depict the tenanted property. 3.4 Moreover, there is no dispute between the parties as regards the tenanted premises and as regards relationship.
3.5 Thus, this defence raised by the respondent does not raise any triable issue. 4 It is unbelievable that the son of the petitioner, who is a qualified Company Secretary, will prefer to sit or maintain office at the tenanted premises, as the tenanted premises is in a remote area and not very well connected with public transport.
4.1 Respondent has raised a defence that it is unbelievable that the son of the petitioner, who is a qualified Company Secretary, will prefer to sit or maintain office at the tenanted premises, as the tenanted premises is in a remote area and not very well connected with public transport.
4.2 Petitioner on the other hand submitted that the son of the petitioner requires the tenanted premises for establishing his office as the said premises is very near to the residence of the petitioner, as the son of petitioner is residing with him at Mukherjee Park and also for the reason that his son would save Rs.9,000/ per month which he is paying rent at present for the office in which he is working. That if the son of the petitioner opens his office in the tenanted premises then he would also be able to look after the petitioner who is 67 years old, as the petitioner and his other son Anil Kathuria are using the remaining portion of the premises for their commercial establishment.
4.3 In a recent judgment it has been observed by our own High Court that it is the moral duty of a father to help establish his son. The relevant portion of the judgment titled Pawan Kumar Vs Sant Lal R.C.Rev 303/2012 decided on 6.8.2012 by Honorable Mr Justice M.L.Mehta is as under: "16. Further, submissions of learned counsel for the petitioner that E.No. 274/11 Page no. 9 of 19 Dr. Ankit was not financially dependent upon his father and so the tenanted premises could not be got vacated for his requirement, is also only noted for rejection. It is trite that the landlord is entitled to help his son, establish his business. In Labhu Lal Vs. Sandhya Gupta 2011(1) RCR,(Rent) 231 (Delhi), it has been held by this Court that the children are very much dependant on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan Das 2009(2) RCR 455. The moral duty of a father to help establish his son was also recognized by the Apex Court in Joginder Pal Singh Vs. Naval Kishore Behal AIR 2002 SC 2256 in the following words:
"24........Keeping in view the social or socioreligious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire : (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close interrelation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."
4.4 It may be noted that in Joginder Pal Singh Vs. Naval Kishore Behal AIR 2002 SC 2256 (as referred to in aforesaid judgment) the situation was similar to the present case, as in the said case before the Apex court the landlord had filed eviction petition for the office of his son who was a chartered accountant who was residing with him. Honorable Mr. Justice R.C. Lahoti observed in the said judgment that such a requirement of the landlord is a genuine requirement . In the said case the Apex E.No. 274/11 Page no. 10 of 19 Court evicted the tenant from the premises for the said requirement of the landlord. 4.5 The present case is similar to the case of Joginder Singh (supra) as in the present case the tenanted premises is required by the landlord petitioner for the office of his son Pradeep Kathuria who is a Company Secretary and who has been asked by his landlord at Rajender Nagar to vacate by December 2011. 4.6 It may be noted that the Respondent has not denied that the son of petitioner is a Company Secretary, the respondent has merely contended that it is unbelievable that it is unbelievable that the son of the petitioner, who is a qualified Company Secretary, will prefer to sit or maintain office at the tenanted premises, as the tenanted premises is in a remote area and not very well connected with public transport. 4.7 It may be unbelievable for the respondent that son of the petitioner, who is a qualified Company Secretary, will prefer to sit or maintain office at the tenanted premises, which is in a remote area and not very well connected with public transport, but, it may be the only option available to the landlord petitioner. Every parent wants to settle his children in the best possible manner and if the petitioner has found it proper to help his son to open his office at the tenanted premises, then it would not be proper for the court to interfere in such decision of the petitioner, as the petitioner is the best judge of his own requirements and that of the requirements of his family. 4.8 In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary reported as AIR 2000 SUPREME COURT 534 the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Reference be made to Prativa Devi Vs T.V. Krishnan (1996) 5 SCC 353. 4.9 In the judgment tiled as "Sarla Ahuja v. United India Insurance Co. Ltd." AIR 1999 SUPREME COURT 100 it was held:
"..The crux of the ground envisaged in clause (e) of Section 14(1) E.No. 274/11 Page no. 11 of 19 of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself...." (emphasis supplied) 4.10 In the judgment tiled as Ram Babu Aggarwarl v. Jay Kishan Das 2009(4) R.C.R.(Civil) 748 (SC), the Hon'ble Supreme Court observed;
".......6. However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also...."
In the said judgment the Apex Court has observed to the extent that requirement of landlord for setting up his son who has no experience in business is a bona fide requirement.
The present case is on a much better footing as in the present case admittedly the son of the petitioner is a Company Secretary and thus qualified to open an office to earn his livelihood.
E.No. 274/11 Page no. 12 of 19 4.11 The respondent has relied upon the judgment titled as Vijay Nayyar Vs. Om th Prakash Malik, RCR No. 120/11 decided on 11 July, 2011 by Delhi High Court however as per said judgment the leave to defend was allowed as it was observed that it was a triable issue as to whether the sale of two shops by the landlord in the month of April, 2009 was for making payment of credit card dues etc or whether the said sale transactions was only to create a ground for seeking eviction of the petitioner tenant on the ground of bona fide requirement of the shop in his tenancy. Thus the facts of the said case are quite different from the facts of the present case.
Another judgment relied upon by the respondent is Satpal Khurana Vs. st Beerwati, RC REV. 287/10 decided on 21 of July, 2011 by Delhi High Court , in which the leave to defend was granted as the landlord has admitted before the Hon'ble Delhi High Court that for some period prior to the filing of eviction petition the landlord had let out one shop adjoining to the tenanted premises of one Chanchal at a monthly rent of Rs. 200/ and it was also admitted that in another house of the landlord at Shastri Nagar, Delhi the landlord had recently let out two rooms to some rickshaw pullers at a monthly rent of Rs. 100/ and these issues were held to be triable issues having a bearing on bonafide requirement of the landlord.
However the facts of the present case are entirely different as in the present case the premises in question is required by the landlord for opening office of his son and it is not the case of the tenant that either ground floor or the second floor of the premises in question has been recently let out by the landlord to other person, rather, in the present case there is no averment of the tenant/respondent that the landlord has created requirement by alienating any other property under his possession or by letting out any other such property in recent past.
4.12 Another judgment which has been relied upon by the respondent is Dolly E.No. 274/11 Page no. 13 of 19 th Chandra & Anr. Vs. Rameshwar Prasad, RCR No. 171/2011 decided on 08 of September 2011 of Hon'ble Delhi High Court, in which two contradictory stands were taken by the respondent, as at one stage the landlord stated that the property was completely residential and on the other hand he stated that the first floor of the property was commercial, which introduced an element of doubt about the bonafide of his requirement leading to allowing of the leave to defend by the Hon'ble High Court. The facts of the said case are entirely different from the facts of the present case and thus said judgment is not applicable to the present circumstances 4.13 In the opinion of the court the requirement of the landlord petitioner for his son is a bonafide requirement and there is no reason for the court to find any malafide intention behind the same.
4.14 Thus, this defence raised by the respondent does not raise any triable issue. 5 That the second floor, above the tenanted premises is vacant and can be used by the son of petitioner and that the ground floor of the same premises is being used by Anil Kathuria, elder son of the petitioner.
5.1 It has been submitted by the respondent that the second floor, above the tenanted premises is vacant and can be used by the son of petitioner and that the ground floor of the same premises is being used by Anil Kathuria, elder son of the petitioner. 5.2 The petitioner on the other hand submitted that the ground floor of the premises is being used by the petitioner and his son Anil Kathuria as a shop and the second floor of the premises is being used by them for storage purposes. Thus the second floor of the suit property is not vacant and cannot be used by younger son of the petitioner for establishing his office.
5.3 It has been admitted by the respondent that the ground floor of the property is being used by the elder son of the petitioner. He has alleged that the second floor of the property is vacant, but, has not filed any document in this regard. By merely E.No. 274/11 Page no. 14 of 19 alleging that the second floor of the property is vacant the claim of the petitioner cannot be defeated, because if the leave is granted on such submissions, then every tenant would state that the remaining portion of the premises is vacant and would prolong the proceedings by obtaining leave to defend from the rent controller. 5.4 It has been observed in para 13 of the judgment titled Inderjeet Kaur Vs Nirpal Singh 2001(1) RCR Rent 33 that ".. A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act.." 5.5 Moreover, the challenge to title of petitioner raised by the tenant respondent, and alleging that the premises was owned by the father of the petitioner, shows that the tenant is desperate to raise any and every defence, whether tenable or not. 5.6 Thus, this defence raised by the respondent does not raise any triable issue. 6 Petitioner is having a property at Mohan Garden, Delhi (close to Uttam Nagar) which is lying vacant and he is also living in a posh colony at 115, Mukherjee Park, New Delhi which is measuring 200 square yards and that son of petitioner, Pradeep Kathuria is running his office at the ground floor of the said house.
6.1 Respondent contended that the petitioner is having a property at Mohan Garden, Delhi (close to Uttam Nagar) which is lying vacant and he is also living in a posh colony at 115, Mukherjee Park, New Delhi which is measuring 200 square yards and that son of petitioner, Pradeep Kathuria is running his office at the ground floor of the said house.
6.2 The petitioner denied that he has any property at Mohan Garden, though it was admitted that he has a residential house at Mukherjee Park. 6.3 As far as the fact that the petitioner is residing with his son at Mukherjee Park is E.No. 274/11 Page no. 15 of 19 concerned the said fact has been admitted by the petitioner, rather in the petition itself the address of the petitioner is mentioned as that of Mukherjee Park. However, there is no evidence to show that the son of the petitioner is running his office in the said property. Rather, it has been submitted by the respondent himself that the petitioner and his three sons with their families are residing at the said house. Thus it is clear that the said house is being used for residence by the family members of the petitioner, but there is nothing to show that the son of the petitioner is running his office from the said premises.
6.4 If the leave to defend is granted on mere assertions that landlord (or his family) is running business from the place of residence, though actually he is not, then in every case the tenant would get leave by just stating that the landlord is using his residence for commercial purposes also, as the landlord in very petition would be residing at some place or the other, at the time of filing of the petition. 6.5 Moreover, as stated earlier, the petitioner has specifically denied that he is the owner of any property at Mohan Garden, Delhi. It has been observed in judgment titled as Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors. 155 (2008) DLT 383 by Hon'ble Delhi High Court as under:
"Section 25 B was inserted by the Legislature in Delhi Rent Control Act as a special provision for eviction of the tenants in respect of specified category of cases as provided therein. Where a landlord seeks eviction on the basis of bona fide necessity, a summary procedure is provided and tenant has to seek leave to defend disclosing such facts which disentitled the landlord from seeking eviction. Where a tenant pleads, in leave to defend preposterous prepositions and makes such averments which are palpably false and the landlord in his reply affidavit to leave to defend is able to show to the ARC that all facts stated in leave to defend, were palpably false, ARC is not precluded from considering the falsity of such facts on the basis of material placed by the landlord before it. If the tenant in its leave to defend pleads that landlord was owner of another premises with which landlord had nothing to do, mere filing of affidavit is not E.No. 274/11 Page no. 16 of 19 sufficient. The tenant has to place before the learned ARC such documents which show that the landlord was owner of that premises. If no such document is placed on record by the tenant, the learned ARC is not required to consider the ownership of the landlord of such a premises. If the leave is granted on mere assertions that landlord was owner of the premises, of which he is not, then in every case the tenant would get leave by just naming any premises with which landlord has no concern"
6.6 In the present case also the respondent has just made bald averment that the petitioner has another property at Mohan Garden, Delhi and he has not filed any document to support his contention.
6.7 Thus, this defence raised by the respondent does not raise any triable issue. 7 Respondent in the year 1986 had paid a sum of Rs.10,000/ to the petitioner as pagri which was real value of the property at that time and it was agreed between the parties that the respondent would use the property for his life time. 7.1 Respondent contended that in the year 1986, he had paid a sum of Rs.10,000/ to the petitioner as pagri which was real value of the property at that time and it was agreed between the parties that the respondent would use the property for his life time.
7.2 The petitioner admitted that he had received a sum of Rs.10,000/ from the respondent but he denied that the said amount was received as pugri, rather as per the petitioner the said amount was received as advance/security deposit. The petitioner also pointed out in counter affidavit that the respondent has not filed on record any receipt of said amount.
7.3 A perusal of the record reveals that there is no document on record to show that there was an agreement between the parties that upon payment of Rs.10,000/ the tenant respondent would become tenant for his life time. 7.4 As per the contention of the respondent there was a lease agreement between the E.No. 274/11 Page no. 17 of 19 parties for the life time of the respondent and he had thus paid Rs.10,000/ to the petitioner. A lease for the life time of the tenant respondent means a lease beyond period of 11 months and any lease which is beyond a period of 11 months cannot be made orally and even if made in writing, is compulsorily required to be registered as per the Registration Act. There is no document on record to show any such lease agreement between the parties and in absence of such document the tenancy is a monthly tenancy.
7.5 Thus, this defence raised by the respondent is a sham defence and it does not raise any triable issue.
Conclusion
11. It is well settled that leave to defend is granted to the tenant in case any triable issue is raised by him, which can be adjudicated by consideration of additional evidence. The mere existence of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it will disentitle the landlord from obtaining the eviction order.
12. In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash 167 (2010) DLT 80 the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778 observed in para 17 as under:
"..It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant E.No. 274/11 Page no. 18 of 19 considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.." (emphasis supplied)
13. The whole purpose and import of summary procedure under Section 25B of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court cannot mechanically and in routine manner grant leave to defend.
14. In the light of the aforesaid legal proposition, all the pleas taken by the respondent have failed to raise any triable issues. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the requirement of the petitioner. The application for leave to defend filed by the respondent is thus rejected.
15. As a consequence thereof, an eviction order is passed U/s. 14 (1) (e), DRC Act against the respondent regarding the tenanted premises at the first floor of property bearing No.A58/1, Shyam Nagar, Punjabi Market, New Delhi as shown in red in the site plan filed by the petitioner.
16. However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
The parties are left to bear their own costs.
File be consigned to Record Room after due compliance.
Announced in the open Court
on 19th day March of 2013 (Saurabh Partap Singh Laler)
ACJ/ARC(West)/19.3.2013
E.No. 274/11 Page no. 19 of 19